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[1920] VLR(106 results)

Cases reported in this volume of the Victorian Reports

PRESIDENT, ETC., OF THE SHIRE OF CORIO v. DREFYUS AND CO.VLR 1

HOOD, J.·10 Oct 1919·Supreme Court of Victoria

Local governmentRateable property — Occupier — Exemption — Property of Victorian Railways Commissioners and Geelong Harbour Trust — Used for public purposes — Local Government Act 1915 (No. 2686), ss. 249, 265.

GIBBS v. GADSONVLR 6

MANN, J.·6 Nov 1919·Supreme Court of Victoria

Metropolitan Board of WorksStructure — Obstruction — Swing gates erected over sewer — Melbourne and Metropolitan Board of Works Act 1915 (No. 2696), s. 148.

REX v. RICHMONDVLR 9

HOOD, J., CUSSEN, J., and SCHUTT, J.·8 Dec 1919·Supreme Court of Victoria

Criminal lawSentence — Prisoner found not guilty of larceny of goods from railways, but guilty of receiving — Reference by Judge to frequency of pilfering from railways — Whether Judge entitled in passing sentence to take into account the fact that prisoner's sworn evidence on his own behalf was disbelieved by jury — First offender — Release on recognizance — Discretion — Crimes Act 1915 (No. 2637), s. 532.

NATIONAL TRUSTEES EXECUTORS AND AGENCY CO. OF AUSTRALASIA LTD. v. O’CONNORVLR 13

[Coram KNOX, C.J., BARTON, ISAACS, GAVAN DUFFY, AND RICH, JJ.]·28 Oct 1919·In the High Court of Australia

WillHolographic — Interpretation — Survivorship — "Event of decease" — "Remaining survivors" — "Portion" — "Revert" — Accrued shares — Survivorship referred to death of testator — Vesting.

BEVERN v. BEVERNVLR 26

HOOD, CUSSEN, and SCHUTT, JJ.·4 Dec 1919·Supreme Court of Victoria

DivorceAdultery — Connivance — Wife a prostitute — Adultery repeatedly condoned — Husband subsequently leaving wife and going on active service — Whether connivance, wilful neglect, or misconduct conducing to subsequent adultery — Marriage Act 1915 (No. 2691), ss. 128, 131 (2).

FLETCHER v. SKRIMSHIREVLR 29

IRVINE, C.J., SCHUTT, J., MANN, J.·14 Nov 1919·Supreme Court of Victoria

War precautionsMoratorium — Vendor and purchaser — Action for recovery of instalments of purchase money and interest — "Matter arising under" the regulations — Appeal from determination of — Exercise of rights under agreement for purchase of land — War Precautions (Moratorium) Regulations, Statutory Rules, No. 253 of 1917, 8 (c), 10 (a), Nos. 140, 202 of 1919 (13) — Moratorium Act (No. 2 of 1919), First Schedule, Regulations 8 (c), 10 (a), 13.

PASH v. THE VICTORIAN STEVEDORING AND GENERAL CONTRACTING Co. PTY. LTD.VLR 35

HOOD, J., CUSSEN, J., and SCHUTT, J.·3 Dec 1919·Supreme Court of Victoria

Workers' compensationAccident arising out of and in coarse of employment — Workman on ship descending dark hatchway — Improper route — Added risk — Workers' Compensation Act 1915 (No. 2750), s. 5.

CHALEYER v. SMITHVLR 40

HOOD, J.·5 Feb 1920·Supreme Court of Victoria

EvidenceBankers' books — Practice — Application by judgment creditor to obtain copy of entries in account of garnishee in bank's books — Order for discovery and interrogatories already obtained — Evidence Act 1915 (No. 2647), s. 89.

FLINN v. BRAINVLR 42

MANN, J.·3 Feb 1920·Supreme Court of Victoria

PracticeApplication to remit to County Court — Delay in applying — Time from which delay calculated — Vacation — County Court Act 1915 (No. 2636), s. 51 — Rules of Supreme Court 1916 — Order LXIII., r. 4.

IN THE WILL OF RICEVLR 44

HOOD, J.·15 Dec 1919·Supreme Court of Victoria

WillConstruction — Public policy — Condition subsequent — Direction that if a particular person should be employed by or hold orders in the Church of England a prior gift to that church should be void — Validity.

IN RE THORNE AND SHERSON’S CONTRACTVLR 50

MANN, J.·2 Feb 1920·Supreme Court of Victoria

Vendor and purchaserLegal estate — Real property — Title — Executor — Devisee — Vesting of legal estate in devisee — Conveyance to uses — Assent to devise — Administration — Administration and Probate Act 1915 (No. 2611), ss. 9, 10, 11, 12.

BURNSIDE v. MELBOURNE FIRE OFFICE LIMITEDVLR 56

HOOD, J., CUSSEN, J., and SCHUTT, J.·24 Nov 1919·Supreme Court of Victoria

InsuranceFire policy — Proposal — Misrepresentation — Materiality — Pleading — Arbitration, condition precedent to action — Time limit of action — Contract — Repudiation — What amounts to — Election — Rights of parties.

LITTLEHALES v. LITTLEHALESVLR 75

IRVINE, C.J., HOOD, J., and McARTHUR, J.·3 Feb 1920·Supreme Court of Victoria

DivorcePractice — New trial — Undefended suit — No answer filed — Appeal — Further evidence — Jurisdiction of single Judge — Marriage Act 1915 (No. 2691), ss. 160, 161, 173 — Rules of Supreme Court — Order XXXVI., r. 33 — Divorce Rules, Nos. 61 and 161.

KIERNAN v. LIPMANVLR 81

HOOD, J.·18 Feb 1920·Supreme Court of Victoria

Police offencesIndecent pictures — "Picture," whether includes cinematograph display — Venereal diseases, picture or advertisement relating to — "Work of recognized literary merit," whether picture can be — Police Offences Act 1915 (No. 2708), ss. 172, 173 — Venereal Diseases Act 1916 (No. 2858), s. 25 (1), (2) — Venereal Diseases Act 1918 (No. 2994), s. 18 (1), (2) — Consolidating Act — Previous legislation — How far admissible for purposes of construction — Applicability of legislation to new conditions of fact.

McCANN v. BLAKEVLR 89

MANN, J.·8 Jan 1920·Supreme Court of Victoria

Police offencesGaming — Place used for betting — Bets made in public billiard-room — Amendment of information — Police Offences Act 1915 (No. 2708), s. 98.

MATTHEWS v. MATTHEWSVLR 91

HOOD, J.·5 Mar 1920·Supreme Court of Victoria

DivorcePractice — Service of petition and citation — Service out of time — Extension of time — Rules of Supreme Court 1916 — Order LXVII., r. 7; Order LXX., r. 1 — Divorce Rules 1916, No. 7.

THE KING v. THE MAYOR, ETC., OF THE CITY OF MELBOURNEVLR 93

[Coram KNOX, C.J., ISAACS, GAVAN DUFFY, AND RICH, JJ.]·1 Mar 1920·In the High Court of Australia

Local GovernmentCity of Melbourne — By-law — Breach — Recovery of penalties — Whether Crown or City of Melbourne entitled to penalties recovered — Application of Local Government Act 1915 to City of Melbourne — By-laws of City of Melbourne made under sec. 197 of the Local Government Act 1915 — Local Government Act 1915 (No. 2686), ss. 4, 197, 721.

IN THE MATTER OF A TRANSFER FROM PHILPOTT BY DIRECTION OF WILLIAMS, TO THE WAR SERVICE HOMES COMMISSIONERVLR 100

[Coram KNOX, C.J., ISAACS, HIGGINS, GAVAN DUFFY, POWERS, RICH, AND STARKE, JJ.]·3 Mar 1920·In the High Court of Australia

StampsQuestion as to the limits inter se of State and Commonwealth powers — Commonwealth instrumentality — War Service Homes Commissioner — Stamp duty imposed on transfer or conveyance on sale — Sub-purchaser, transfer by direction to — Commonwealth Judiciary Act 1903-1910, ss. 38A, 40A — Stamps Act 1915 (No. 2728), ss. 17, 22, 33, 62, 68, Third Schedule, Part VI. — Stamps — Stamps Act 1918 (No. 2982), s. 3.

THE KING v. BALLARAT TRUSTEES, EXECUTORS AND AGENCY CO. LTD.VLR 104

[Coram ISAACS, GAVAN DUFFY, AND RICH, JJ.]·10 Dec 1919·In the High Court of Australia

Administration and probateDuty — Transfer of land by aged father to sons — Land subject to mortgage — Contract purporting to be sale — Agreement by sons to pay mortgage, sum of money, and annuity to transferor — Undervalue — Onus of proof — "Purporting to operate as an immediate gift inter vivos" — Administration and Probate Act 1915 (No. 2611), s. 143.

IN THE WILL OF WARNOCKVLR 108

MANN, J.·3 Feb 1920·Supreme Court of Victoria

WillTrust for sale — Shares in company — Power to postpone sale — Reconstruction of company — Issue of new shares to shareholders in old company — New company practically identical with old company — Whether trustees authorized to retain new shares.

KIERNAN v. ALLENVLR 112

SCHUTT, J.·17 Mar 1920·Supreme Court of Victoria

AuctioneerPerson pretending to be an auctioneer — Offence to "cause to be placed any placard board matter or thing in the public view" — Construction — Inserting advertisement in public newspaper, whether included in above words — Ejusdem generis — Auction Sales Act 1915 (No. 2615), s. 31.

DODGE v. McNAUGHTONVLR 115

HOOD, J.·20 Feb 1920·Supreme Court of Victoria

JusticesCourt of Petty Sessions — Landlord and tenant — Jurisdiction — Application to recover possession of premises — Dispute as to nature of tenancy — Bon fide question of title — "Any complaint under this (Justices) Act" — Justices Act 1915 (No. 2675), ss. 67, 81 — Landlord and Tenant Act 1915 (No. 2677), ss. 92, 93.

GARNER v. FREDERICKVLR 121

SCHUTT, J.·31 Mar 1920·Supreme Court of Victoria

Landlord and tenantEjectment — Notice of intention to apply to justices — Notice by agent — Form of notice — Non-compliance with statute — Sufficiency of notice — Landlord and Tenant Act 1915 (No. 2677), s. 92 — Schedule 7.

WINSTANLEY v. WINSTANLEYVLR 123

SCHUTT, J.·19 Mar 1920·Supreme Court of Victoria

DivorcePractice — Allegation of adultery — Joinder of co-respondent — Claim for damages — Agreement before trial as to payment of damages — Striking out claim for damages — Amendment of petition — Marriage Act 1915 (No. 2691), s. 148.

WATSON v. CAMPBELLVLR 125

SCHUTT, J.·22 Mar 1920·Supreme Court of Victoria

PracticeAction for breach of promise of marriage — Application to remit to County Court — Delay — County Court Act 1915 (No. 2636), s. 51 — Rules of Supreme Court 1916 — Order XVIII.A, r. 4 — Order XXXVI., r. 11A.

MULFAHEY v. FULLARTONVLR 126

SCHUTT, J.·17 Mar 1920·Supreme Court of Victoria

Criminal lawExecution of warrant — Service and execution of process — Information issued in Tasmania — Arrest upon warrant — Application that defendant be returned to Tasmania — Information laid by officer of police — Whether application for return was bon fide in the interests of justice — Whether unjust or oppressive to return defendant to Tasmania — Federal Service and Execution of Process Act 1901-1912 (No. 11 of 1901, No. 18 of 1912), s. 18.

SWINBURNE v. THE COMMISSIONER OF TAXATIONVLR 133

[Coram KNOX, C.J., ISAACS, GAVAN DUFFY, RICH, AND STARKE, JJ.]·1 Mar 1920·In the High Court of Australia

Income Tax (Federal)Deduction — Gift to Swinburne Technical College — Whether a gift to "public charitable institution" — Income Tax Assessment Act 1915-1918 (No. 34 of 1915, No. 18 of 1918), s. 18 (1) (h) (iii.)

IN RE DREWVLR 139

[Coram KNOX, C.J., ISAACS, HIGGINS, GAVAN DUFFY, POWERS, AND RICH, JJ.]·18 Mar 1920·In the High Court of Australia

InsolvencyConstitutional law — Legislative powers of Commonwealth Parliament — Defence — Deed of Assignment — Debt due to Australian Soldiers Repatriation Fund — Money in part privately contributed — Priority of debts — The Constitution (63 & 64 Vict., c. 12), s. 51 (vi.), (xvii.) — Commonwealth Australian Soldiers Repatriation Act 1917-1918 (No. 37 of 1917), s. 19 — Australian Soldiers Repatriation Act 1918 (No. 15 of 1918), s. 14 — Judiciary Act 1903-1910, ss. 38A, 40A.

IN RE HARVEYVLR 142

SCHUTT, J.·12 Apr 1920·Supreme Court of Victoria

DivorceInsolvency — Damages — Contempt of Court — Attachment for non-payment of damages in divorce — Sequestration prior to decree — Power to discharge prisoner attached by Supreme Court — "Action" — Whether includes petition for divorce — Insolvency Act 1915 (No. 2671), ss. 173, 174, 186, 187.

IN THE WILL OF MOYLEVLR 147

SCHUTT, J.·30 Mar 1920·Supreme Court of Victoria

WillInterpretation — Dictionary principle — Stepdaughter described as "daughter" — Gift to "grandchildren" — Children of stepdaughter included in class.

COX v. DUKEVLR 152

MANN, J.·24 Mar 1920·Supreme Court of Victoria

JusticesIndictable, offence — Refusal to commit for trial — Order to review — Whether applicable — "Person aggrieved." — "Order," meaning of — Justices Act 1915 (No. 2675), s. 150 (1) (4).

SIEMERS v. MacKIEVLR 153

IRVINE, C.J.·6 May 1920·Supreme Court of Victoria

JusticesPractice — Interpleader — Notice of claim defective — No grounds of claim — Application to amend — Discretion of justices — Justices Act 1915 (No. 2675), s. 114 (1).

BROKENSHIRE v. TEMPLETONVLR 156

MANN, J.·14 Apr 1920·Supreme Court of Victoria

County CourtJurisdiction — Defendant "of parts unknown" — Judgment — Sale — Transfer — Registrar of Titles — Refusal to register — County Court Act 1915 (No. 2636), s. 148 — Transfer of Land Act 1915 (No. 2740), s. 248 — Local Government Act 1915 (No. 2683), ss. 341, 342.

ROBERTSON v. GEORGE GARDINER AND CO. PTY. LTD.VLR 160

SCHUTT, J.·30 Mar 1920·Supreme Court of Victoria

FertilizerRequirements of Fertilizers Act 1915 — Chemical analysis — Whether fertilizer complied with standard specified in Act — Sale — Fertilizers Act 1915 (No. 2652), s. 16.

IN RE BUTCHERVLR 166

MANN, J.·25 Mar 1920·Supreme Court of Victoria

Administration and ProbateSoldier's will — Will lost or destroyed — Evidence of making will — Declaration by testator as to making and contents.

BORSUM v. CLAREYVLR 169

SCHUTT, J.·30 Apr 1920·Supreme Court of Victoria

RailwaysPassenger — Refusal to produce ticket — Intending passenger entering railway station — Railways Act 1915 (No. 2715), s. 31.

NEWMAN & CO. v. PLISCHVLR 173

CUSSEN, J.·22 Apr 1920·Supreme Court of Victoria

JusticesJurisdiction — Detention of goods — Notice of claim for goods — Goods not in possession of defendant at time of notice of claim — Power of Court of Petty Sessions to make an order — Justices Act 1915 (No. 2675), s. 64 (3).

R. v. SMITHVLR 177

SCHUTT, J.·6 May 1920·Supreme Court of Victoria

Criminal LawAppeal — Notice of application for leave to appeal, form of — Application for legal aid to be assigned — Power of Court to assign legal aid — To whom application should be made — Crimes Act 1915 (No. 2637), ss. 601, 604 (2) — Criminal Appeal Rules 1915, Schedule, Form VII.

DANAHER v. CONDONVLR 179

HOOD, J.·28 Apr 1920·Supreme Court of Victoria

ThistlesDestruction — Notice to destroy — Authority to enter and destroy — What is valid authority — Time of entry — Work done partly before expiration of seven days — Thistle Act 1915 (No. 2736), ss. 4 (1) and 7.

O’SULLIVAN v. LONGVLR 182

IRVINE, C.J.·10 May 1920·Supreme Court of Victoria

JusticesCommitment — Recognizance of surety on bail bond forfeited — Warrant of distress issued thereon returned unsatisfied — Warrant of commitment for want of distress — Whether bondsman entitled to be heard before warrant issues — Justices Act 1915 (No. 2675), ss. 110, 115, 116.

McMANAMNY v. DORGANVLR 185

IRVINE, C.J., MANN, J., and McARTHUR, J.·4 May 1920·Supreme Court of Victoria

LicensingBar, what is — Sale of intoxicating; liquor in room used for sale of non-intoxicating liquor — Licensing Act 1915 (No. 2683), s. 214 — Practice — Order to review — Right to begin.

CRABB v. GLEESONVLR 189

IRVINE, C.J.·28 Apr 1920·Supreme Court of Victoria

Vendor and purchaserSale of land — Contract — Time of essence — Failure to pay on appointed day — Specific performance — When equity will refuse — Waiver — Deposit — Forfeiture.

IN RE EVAVLR 196

[BEFORE THE JUDGES OF THE SUPREME COURT (CUSSEN, SCHUTT, AND McARTHUR, JJ.)]·7 Mar 1920·Supreme Court of Victoria

Barrister and solicitorArticles of clerkship, condition of entering into — "Passed at a public examination in Latin," meaning of — Public examination in University of another State, recognized by University of Melbourne, whether sufficient — Rules of the Council of Legal Education 1915, rule 5 (2) — Rules of 10th October 1918.

HORNE v. BARBERVLR 198

[Coram KNOX, C.J., ISAACS, GAVAN DUFFY, AND RICH, JJ.]·17 May 1920·In the High Court of Australia

ContractIllegality — Member of Parliament acting as land agent — Sale of lands to Lands Purchase and Management Board for settlement of discharged soldiers — Closer Settlement Act 1915 (No. 2629), s. 26 (3) — Discharged Soldiers Settlement Act 1917 (No. 2916).

R. v. O’CONNORVLR 204

CUSSEN, J., MANN, J. and McARTHUR, J.·8 June 1920·Supreme Court of Victoria

Criminal lawPrisoner giving no evidence — Comment by Judge on failure to give evidence — What amounts to — Statement that prisoner has called no evidence — Crimes Act 1915 (No. 2637), ss. 432, 448 — Crimes Act 1915 (No. 2) (No. 2789), s. 2.

GARNER v. WALLERVLR 207

HOOD, J.·1 June 1920·Supreme Court of Victoria

Factories and shopsCarting goods during prohibited hours — Carting for personal use — "No person shall cart" — Limitation to carting by way of business — Factories and Shops Act 1915 (No. 2650), s. 127.

MAYOR, ETC., OF THE BOROUGH OF SEBASTOPOL v. MURRAYVLR 211

HOOD, J.·2 June 1920·Supreme Court of Victoria

Local governmentRates, liability for — Land used exclusively for charitable purposes — Home for destitute boys supported by alms — Surplus produce of land and stock above needs of inmates sold and money used towards upkeep of home — Local Government Act 1915 (No. 2686), s. 249 (2) (i.)

IN RE KINGVLR 216

SCHUTT, J.·4 June 1920·Supreme Court of Victoria

InsolvencyPractice — Order nisi for sequestration, service of — Return day — Date already past inserted in error in office copy served on respondent — Enlarging order nisi — Insolvency Act 1915 (No. 2671), ss. 52, 58, 59.

KING v. THE COMMERCIAL BANK OF AUSTRALIA LTD.VLR 218

SCHUTT, J.·11 June 1920·Supreme Court of Victoria

PracticeDiscovery — Interrogatories — Further answers — Documents referred to in answer as "documents which purport to be copies" — Objection to answer on ground that interrogatory inquires as to matter of law — Superfluous matter introduced into answer to interrogatories — Power of Judge to strike out on summons — Proper course for party interrogating to pursue — Rules of the Supreme Court 1916 — Order XXXI., r. 11.

COMMERCIAL BANK OF AUSTRALIA LTD. v. WHINFIELDVLR 225

SCHUTT, J.·8 June 1920·Supreme Court of Victoria

PracticeDiscovery — Interrogatories — Answer of corporation to interrogatories, by whom to be sworn — Proper officer, who is — Limits of right of corporation to select officer where no person named in order — Form of answer — Rules of the Supreme Court 1916 — Order XXXI., r. 5.

HOYSTED v. COMMISSIONER OF TAXATIONVLR 230

[Coram KNOX, C.J., ISAACS AND STARKE, JJ.]·10 May 1920·In the High Court of Australia

Land taxDeductions — Joint owners — Original shares, what are — Contingent interest in proceeds of sale — Interest in net profits — Interest greater than interest for life — Land Tax Assessment Act 1910-1916 (No. 22 of 1910, No. 12 of 1911, No. 33 of 1916), s. 38 (7) (8).

TERRY v. COMMISSIONER OF TAXATIONVLR 257

[Coram KNOX, C.J., GAVAN DUFFY, RICH, AND STARKE, JJ.]·13 May 1920·In the High Court of Australia

Land taxWill — Devise in trust for testator's children in unequal shares — Postponement of vesting till each child attained the age of forty years or being a daughter married under that age — Power to trustee to allow maintenance to each beneficiary out of his or her share prior to vesting of share — Surplus income to be an accretion to capital — "Joint owners" — Deductions — How many deductions allowable — Federal Land Tax Assessment Act 1910-1916 (No. 22 of 1910, No. 12 of 1911, No. 33 of 1916), s. 38, sub-s. (7).

IN RE CARILEVLR 263

HOOD, J.·31 May 1920·Supreme Court of Victoria

Voluntary deedAcknowledgment of debt — Direction to pay after death — Delivery to donee — Whether a valid present gift or testamentary in character.

IN RE KINGVLR 267

SCHUTT, J.·25 June 1920·Supreme Court of Victoria

InsolvencyPractice — Appeal from order absolute pending — Stay of proceedings — Application to Supreme Court to stay proceedings under order absolute for sequestration — Jurisdiction of Supreme Court — Insolvency Act 1915 (No. 2671), ss. 52, 61, 66 (2), 72 — Supreme Court Act 1915 (No. 2733), s. 30 — Rules of the Supreme Court 1916 — Order LVIII., r. 16.

MORRISON v. HOAREVLR 270

SCHUTT, J.·30 June 1920·Supreme Court of Victoria

Vermin destructionProclamation of day on which destruction of vermin to commence — Power of Governor in Council to make proclamation covering whole of Victoria — "In any part of Victoria" — Ultra vires — Vermin Destruction Act 1915 (No. 2745), ss. 6, 79.

ISAACS v. LORDVLR 274

SCHUTT, J.·30 June 1920·Supreme Court of Victoria

Vendor and purchaserSale of dwelling-house — Fixtures — Spring-roller blinds.

LEE v. AH GEEVLR 278

CUSSEN, J.·15 June 1920·Supreme Court of Victoria

ContractMistake — Estoppel — Written agreement — Plea of non est factum — Illiterate foreigner — Mistake of one party as to nature of document signed, not induced by any fraud or misrepresentation — Negligence negatived — Conduct of one party inducing other party to conclude he was contracting — Reasonableness of such conclusion — Circumstances to be considered — Landlord and tenant — Date when lease to commence.

ADAMS v. ADAMSVLR 288

CUSSEN, J.·16 July 1920·Supreme Court of Victoria

DivorcePractice — Summons by petitioner to dispense with joinder of co-respondent — Right of respondent to be heard on return of summons and to cross-examine petitioner on the affidavit in support thereof — Marriage Act 1915 (No. 2691), s. 126 — Divorce Rules 1916, r. 4.

WHITE v. KENNYVLR 290

IRVINE, C.J.·27 Apr 1920·Supreme Court of Victoria

Landlord and tenantLease — Contract for sub-lease — Full unexpired term of lease — Whether reversion in sub-lessor — Equitable relief sought — Suit of assignee — Whether assignor a necessary party — Covenants not to alter or advertise upon premises — Benefit runs with reversion — 32 Henry VIII., c. 34.

GOODFELLOW v. THE LIFE ASSURANCE CO. OF AUSTRALIA LTD.VLR 296

IRVINE, C.J., SCHUTT, J. and MANN, J.·24 June 1920·Supreme Court of Victoria

ContractMistake — Mistake as to effect of clause in written contract — Language of clause ambiguous — Parol evidence — No consensus ad idem — Rescission — Principal and agent — Innocent misrepresentation by agent — Term of contract that principal should not be bound nor affected by any statements or representations of agent — County Court — Appeal — Practice.

IN RE HASSALLVLR 307

IRVINE, C.J., SCHUTT, J. and MANN, J.·24 June 1920·Supreme Court of Victoria

WillRemoteness — Rule against perpetuities — Gift of income — Class gift — Direction to accumulate — Direction to apply accumulations "when there is a sum of 6000l. available" — Wills Act 1915 (No. 2749), s. 36.

McQUEEN v. McQUEENVLR 325

CUSSEN, J.·4 Aug 1920·Supreme Court of Victoria

DivorceDesertion — Practice — Evidence — Uncorroborated evidence of petitioner — Personal service on respondent — Respondent not appearing — Difficulty in obtaining corroboration — Power of Court to act on uncorroborated evidence of petitioner.

EUTROPE v. CRANGVLR 328

SCHUTT, J.·28 June 1920·Supreme Court of Victoria

PracticeCounty Court, remitting action to — Power to remit action after final judgment given under Order XIV. for part of claim — County Court Act 1915 (No. 2636), s. 50 — Rules of the Supreme Court 1916 — Order XIV.

IN RE CHAMBERS AND CLUTTEN PTY. LTD.VLR 330

HOOD, J.·5 Aug 1920·Supreme Court of Victoria

CompanyReduction of capital — Settling list of creditors — Notice — Unnecessary where no creditors — Period after which "and Reduced" may be discontinued as part of title — Practice — Companies Act 1915 (No. 2631), ss. 53 to 59.

McPHERSON v. GOLDSTONEVLR 331

CUSSEN, J.·9 Aug 1920·Supreme Court of Victoria

Police offencesPerson accused of having in his actual possession personal property suspected of being stolen — Property parted with by prisoner before suspicion attaches — "Suspected goods" — Costs of Special Case — Police Offences Act 1915 (No. 2708), s. 40 (3) — Justices Act 1915 (No. 2675), s. 147 (as amended by Act No. 2875).

CARTER v. REAPERVLR 337

HOOD, J.·4 Aug 1920·Supreme Court of Victoria

Police offencesPerson found in dwelling-house — Without lawful excuse — Meaning — Police Offences Act 1915 (No. 2708), ss. 18, 72, sub-s. 13.

HEGNEY v. HEGNEYVLR 343

HOOD, J.·10 Aug 1920·Supreme Court of Victoria

JusticesHusband and wife — Wife compelled by husband's conduct to leave matrimonial home — Children illegally removed from husband's custody — Leaving without means of support — Ignorance of husband as to wife's and children's whereabouts — Ignorance caused by wife — Order against husband in bailiwick where wife and children residing — Jurisdiction of justices — Marriage Act 1915 (No. 2691), s. 83 — Justices Act 1915 (No. 2675), s. 86; Justices Act 1918 (No. 2967), s. 5 — Form of order.

WATSON v. CAMPBELLVLR 347

SCHUTT, J.·4 May 1920·Supreme Court of Victoria

ContractInfant — Breach of promise of marriage — New promise after coming of age — Evidence — Supreme Court Act 1915 (No. 2733), s. 64 — False statement of age by infant — Effect.

IN RE LEE & CO.VLR 353

IRVINE, C.J.·12 Aug 1920·Supreme Court of Victoria

InsolvencyPractice — Order nisi — Respondent out of jurisdiction — Notice of objections — No agent appointed — Leave to file — Jurisdiction of Court to grant — Insolvency Act 1915 (No. 2671), ss. 52 and 59.

BLACKBELL v. BLACKBELLVLR 356

HOOD, J.·5 Aug 1920·Supreme Court of Victoria

DivorcePractice — Petition on ground of insanity — Service — Guardian — Master in Lunacy — Marriage Act 1915 (No. 2691), s. 158 — Divorce (Insanity) Act 1919 (No. 3049), s. 5 — Divorce Rules 1916, r. 23.

BURN v. BAZIUROSVLR 357

HOOD, J.·18 Aug 1920·Supreme Court of Victoria

Factories and ShopsEmployment — Arrears of Wages — Special Board determination — Contract in accordance with determination — Demand in writing unnecessary — Demand with summons — Sufficiency of — Factories and Shops Act 1915 (No. 2650), s. 225.

IN THE WILL OF CORNWALLVLR 360

IRVINE, C.J.·26 Aug 1920·Supreme Court of Victoria

Administration and probateProbate — Deceased domiciled in England — Property in Victoria — English will — Not proved in Victoria — Next of kin in Victoria — In possession of assets in — Liability to pay duty — Administration and Probate Act 1915 (No. 2611), s. 125.

IN THE WILL OF WALLWORKVLR 365

HOOD, J.·31 Aug 1920·Supreme Court of Victoria

WillInfants — Maintenance — Interest contingent — Occurrence of event before attaining 21 years of age — Trusts Act 1915 (No. 2741), s. 35.

ADULT DEAF AND DUMB SOCIETY OF VICTORIA v. SHIRE OF NUNA-WADINGVLR 369

McARTHUR, J.·16 Aug 1920·Supreme Court of Victoria

Local governmentRates — Exemption — Land used exclusively for charitable purposes — Deaf and Dumb Society — Home — Cultivation of flowers by inmates — Sale of flowers and refreshments — Hiring of boats — Residence of staff on land — Local Government Act 1903 (No. 1893), s. 249 (2) (h) — Local Government Act 1915 (No. 2686), s. 249 (2) (i.)

DONALDSON v. GRAYVLR 379

CUSSEN, J.·6 Sept 1920·Supreme Court of Victoria

Vendor and purchaserPurchaser taking over mortgage — Adjustment of mortgage interest — Date from which purchaser should pay — Mortgagee producing title for registration — Production fee, by whom to be paid — Money paid "under protest" — Whether recoverable — Practice — Vendor and purchaser — Summons taken out after completion of transaction — Conveyancing Act 1915 (No. 2686), ss. 5 (5), 12 — Transfer of Land Act 1915 (No. 2740), s. 127.

TUCKER v. WALKERVLR 385

SCHUTT, J.·9 Apr 1920·Supreme Court of Victoria

PracticeWrit of summons — Writ not served — Motion to dismiss action — No appearance entered — Appearance gratis.

SAINSBURY v. HUMFRESS (FRANK) LTD.VLR 387

CUSSEN, J.·15 Sept 1920·Supreme Court of Victoria

War Precautions RegulationsSheepskins — Appraisement — Failure to make available for — Agent, liability of — Undisclosed principal — Under his or its control — Meaning — Commercial Activities Act 1919 (No. 3 of 1919), Third Schedule — War Precautions (Sheepskins) Regulations 1919, regs. 5 (d), 7B, 14.

IN RE LEE & CO.VLR 390

MANN, J.·9 Sept 1920·Supreme Court of Victoria

InsolvencyCompulsory sequestration — Petition and order nisi — Respondent's name, amendment of — Consequential amendments — Respondent carrying on business alone but under firm name — Proceedings under firm name — Power of amendment, limitations on — Insolvency Act 1915 (No. 2671), ss. 35 (2), 41.

IN THE WILL OF BENJAMINVLR 393

CUSSEN, J.·13 Sept 1920·Supreme Court of Victoria

Settled landFuture trust for sale — "Whether the power or trust takes place in all events or not" — Trustees of will — Trustees of settlement — Practice — Tenant for life — Not in general appointed by Court trustee of settlement — Settled Estates and Settled Lands Act 1915, ss. 97, 98 (ii.), 124 (ix.)

CATHIE v. BONDVLR 398

SCHUTT, J.·9 Aug 1920·Supreme Court of Victoria

Foreign judgmentExecution in Victoria — New Zealand, Supreme Court of — Memorial of judgment — Interest, recovery of — Costs and expenses of execution in New Zealand — Supreme Court Act 1915 (No. 2733), ss. 185, 186.

ORMOND v. GUNNERSENVLR 402

SCHUTT, J.·17 Aug 1920·Supreme Court of Victoria

PracticeInterrogatories — Answers to best of deponent's knowledge, information, and belief — Obligation to make due inquiries from employs prior to answer.

IN THE WILL OF THOMPSONVLR 405

CUSSEN, J.·16 Sept 1920·Supreme Court of Victoria

Administration and probateAdministration — Administrator out of jurisdiction — Bond — Execution — Attorney under power — Administration and Probate Act 1915 (No. 2611), s. 18.

HUMPHRYIS v. SPENCEVLR 407

CUSSEN, J.·6 Sept 1920·Supreme Court of Victoria

Police offencesRogue and vagabond — Known thief — Frequenting with intent to commit a felony — Place adjacent to public highway — Frequenting, evidence of — Definiteness in information and evidence as to place and time — How far necessary — Case stated — Notes of evidence — Practice — Evidence — Wrongful admission or rejection of — Effect — Justices Act 1915 (No. 2675), s. 147 — Police Offences Act 1915 (No. 2708), s. 72 (9).

THE NATIONAL BANK OF TASMANIA LTD. v. McKENZIEVLR 411

CUSSEN, J.·13 Sept 1920·Supreme Court of Victoria

Real propertyLimitation of actions — Equitable mortgage by deposit of title deeds — Money charged on land, right to recover — Acknowledgment in writing — "In he meantime," meaning of — Acknowledgment given more than 15 years after accrual of right — Remedy against land — Right to recover on simple contract — Remedy of equitable mortgagee by deposit of title deeds — Foreclosure, not sale — Real Property Act 1915 (No. 2719), ss. 18, 42, 43, 44, 47, 48, 49, 50 — Supreme Court Act 1915 (No. 2733), ss. 77, 79, 80, 85 — Conveyancing Act 1915 (No. 2633), s. 43 (2).

IN RE CARILEVLR 427

CUSSEN, J.·13 Sept 1920·Supreme Court of Victoria

DeedEscrow — Delivery — Handing over to party or beneficiary — Handing over not to operate as delivery till some condition fulfilled — Instrument only consummated on maker's death — Testamentary character — Revocability.

IN RE ADDIS’S SETTLED ESTATEVLR 437

MANN, J.·24 Sept 1920·Supreme Court of Victoria

Settled landsTenant for life — Dwelling-house — Trust to permit residence rent free for life — Settled Estates and Settled Lands Act 1915 (No. 2725), s. 50 (6).

COUNSELL v. COUNSELLVLR 439

HOOD, J.·5 Oct 1920·Supreme Court of Victoria

Husband and wifeMaintenance — Leaving without means of support — Complaint dismissed — Second complaint — Res judicata — Order to review — Practice — Amendment of order nisi — Substitution virtually of new ground — Not permissible — Marriage Act 1915 (No. 2691), s. 83 — Justices Act 1915 (No. 2675), s. 153.

KING v. KINGVLR 443

IRVINE, C.J., CUSSEN AND MANN, JJ.·18 Oct 1920·Supreme Court of Victoria

Master and servantEmployer and worker — Negligence of employer — Injury to worker — Infant — Compensation paid under Workers' Compensation Act — Damages for negligence subsequently claimed — Exercise of option by infant — Not for infant's benefit — Dangerous machinery — Guards, provision of — Personal neglect in breach of statutory duty — Appeal from order refusing new trial — Form of order — Workers' Compensation Act 1915 (No. 2750), ss. 5 (2) (b), 12 (3) — Factories and Shops Act 1915 (No. 2650), ss. 59, 61 — Employers and Employs Act 1915 (No. 2646), Part III.

FERGUSON v. THE KINGVLR 451

IRVINE, C.J., CUSSEN AND MANN, JJ.·18 Oct 1920·Supreme Court of Victoria

Administration and probateProbate duty — Gift of property within 12 months before death of donor — Twelve assignments — Principle upon which duty calculated — Assignments to be valued separately — Assignment of foreign property — Sale — Receipt of proceeds in Victoria prior to donor's death — Whether taxable — Administration and Probate Act 1915 (No. 2611), s. 143.

CRAINE v. THE COLONIAL MUTUAL FIRE INSURANCE CO. LTD.VLR 459

[Coram KNOX, C.J., ISAACS AND RICH, JJ.]·31 Aug 1920·In the High Court of Australia

InsuranceFire policy — Conditions — Failure to make claim within stipulated time — Waiver — Estoppel — Conduct of parties at trial — Effect of acts expressed to be done "without prejudice" — Distinction between waiver and estoppel.

IN RE KINGVLR 490

SCHUTT, J., MANN, J. and CUSSEN, J.·27 Sept 1920·Supreme Court of Victoria

InsolvencyCompulsory sequestration — Act of insolvency — Execution returned "unsatisfied in whole or in part," meaning of — "Unsatisfied in whole," whether sufficient — Return of nulla bona, truth of — Security held by creditor forming no part of debtor's estate — Right of creditor to pursue personal remedy against debtor — Discretion of Court — Motive of petitioning creditor, whether material — Practice — Service of order nisi — Order enlarging order nisi, signature of — Office copies, by whom authenticated — Insolvency Act 1915 (No. 2671), ss. 49, 58, 59, 61 — Rules in Insolvency 1915, rr. 7, 13.

IN RE KENNEDYVLR 513

MANN, J.·7 Sept 1920·Supreme Court of Victoria

Administration and probateMaintenance of widow of deceased person — Will — In favour of testator's sister — No provision for widow — Living apart from husband — Husband subject to mental derangement and cared for by sister — Renunciation of matrimonial obligations — Maintenance out of estate — Administration and Probate Act 1915 (No. 2611), ss. 109, 110.

PEERS v. THE COLLECTOR OF IMPOSTSVLR 516

IRVINE, C.J., CUSSEN and MANN, JJ.·18 Oct 1920·Supreme Court of Victoria

StampsDuty — Ante-nuptial verbal agreement — Transfer of land pursuant to — Whether dutiable — Settlement or gift, deed of — "Bon fide adequate pecuniary consideration" — "Instrument made before and in consideration of marriage" — Stamps Act 1915 (No. 2728) — Part IX. (1) of Third Schedule.

IN RE BLAND BROS. AND THE COUNCIL OF THE BOROUGH OF INGLEWOODVLR 522

CUSSEN, J. and SCHUTT, J.·27 Sept 1920·Supreme Court of Victoria

WaterWorks constructed under statutory authority — Injury to land — Flooding — Right of action taken away — Statutory right to compensation — Acts — Omissions — Statute — Interpretation — "Notwithstanding anything in the Act contained" — Water Act 1915 (No. 2747), ss. 253, 259, 260, 261, 263, 264, 265, 284, 285 — Water Act 1916 (No. 2852), s. 6.

IN THE WILL OF O’ROURKEVLR 546

CUSSEN, J.·9 Nov 1920·Supreme Court of Victoria

WillGift for special purpose exhausting whole fund — Maintenance and education — Special purpose not carried out — Whether beneficiary entitled to fund.

DANAHER v. CONDONVLR 549

IRVINE, C.J., CUSSEN, J. and SCHUTT, J.·3 Nov 1920·Supreme Court of Victoria

ThistlesDestruction — Notice to destroy — Authority to enter and destroy — Sufficiency of authority — Thistle Act 1915 (No. 2736), s. 7.

PRESIDENT, ETC., OF THE SHIRE OF BRAYBROOK v. ROBINSONVLR 552

IRVINE, C.J., CUSSEN, J. and McARTHUR, J.·5 Nov 1920·Supreme Court of Victoria

Local GovernmentRecovery of rates and other moneys — Money due for private street construction — Certificate of municipal clerk as to amount of moneys due — Conclusiveness — Local Government Act 1915 (No. 2686), s. 341 (2).

CHIDZEY v. BRECKLERVLR 558

SCHUTT, J.·19 Nov 1920·Supreme Court of Victoria

PracticeService out of the jurisdiction — "Cause of action" — Contract — Offer and acceptance — Counter offer — Cause of action which arose within the jurisdiction — Locality of contract — Breach within the jurisdiction — Supreme Court Act 1915 (No. 2733), s. 141.

DAWSON v. STEVENSONVLR 564

MANN, J.·12 Nov 1920·Supreme Court of Victoria

Landlord and tenantLease — Tenant's fixtures — Additions, improvements, and fixtures — Covenants to repair and deliver up in good order and condition "as at present" — Right of tenant to remove — Provision to the contrary — Landlord and Tenant Act 1915 (No. 2677), s. 48.

CRAIG v. NATIONAL TRUSTEES EXECUTORS AND AGENCY COMPANY OF AUSTRALASIA LTD.VLR 569

CUSSEN, J.·28 Nov 1920·Supreme Court of Victoria

TrustsWill — Infants — Maintenance — "Sole discretion" of trustees — Power to maintain under will of mother of infants — Conditions — Maintenance provided by subsequent will of father — Refusal by trustee of mother's will to provide maintenance "at present" — Power of Court to interfere — Practice — Plaintiff cross-examined on hearing of originating summons.

THE KING v. THE COUNCIL OF THE SHIRE OF METCALFEVLR 578

IRVINE, C.J.·5 Nov 1920·Supreme Court of Victoria

Local governmentPublic health — Shire council — Sanitary duties, by-law imposing — Default by council in complying — Board of Public Health — Order of board limiting time for performance of sanitary duties — Council's non-compliance with order — Mandamus — Whether discretionary or mandatory — Jurisdiction to grant — Health Act 1915 (No. 2665), s. 342 — Health Act 1919 (No. 3041), ss. 5, 316.

FULLER v. FULLERVLR 585

MANN, J.·28 Oct 1920·Supreme Court of Victoria

DivorceNew trial — Defended case — Power of Judge — Miscarriage of justice — Discovery of fresh evidence which could have been obtained at hearing — Marriage Act 1915 (No. 2691), ss. 127, 167.

THE COMMERCIAL BANK OF AUSTRALIA LTD. v. KINGVLR 588

MANN, J.·19 Nov 1920·Supreme Court of Victoria

PracticeCosts — Appeal from Supreme Court to High Court — Security for costs — Lodged in Supreme Court — Appellant insolvent after judgment in appeal — Appeal pending to High Court against order for sequestration — Applications in Supreme Court — By respondent for payment of costs out of security — By assignee in insolvency for payment of balance of security — Jurisdiction — Costs of application — No power to order — High Court Procedure Act 1903 (No. 7), s. 35 — Appellate Rules of High Court, Part II., sec. 3, r. 12.

POWER v. DALGETY AND CO. LTD.VLR 592

IRVINE, C.J., SCHUTT and McARTHUR, JJ.·24 Nov 1920·Supreme Court of Victoria

Master and servantAccident — Liability of employer — Plank used as gangway — Defect — Cause of injury to employ — Whether plank a "way" — Findings of fact by jury — County Court — Practice — Judgment non obstante veredicto — Employers and Employees Act 1915 (No. 2646), s. 35, sub-s. (1).

NOLAN v. WARDVLR 604

MANN, J.·8 Nov 1920·Supreme Court of Victoria

LunacyPerson suffering from mental disorder incurred on active military service — Discharged from military forces — Voluntary patient in military hospital — On trial leave — Arrest and forcible detention in military hospital — Action for damages for forcible entry, assault, and false imprisonment — Application to stay action as frivolous and vexatious — Lunacy Act 1915 (No. 2687), ss. 12, 250 — Mental Treatment Act 1915 (No. 2600), s. 2, and Regulations.

THE KING v. BERRIMANVLR 609

IRVINE, C.J., CUSSEN and SCHUTT, JJ.·24 Nov 1920·Supreme Court of Victoria

Licensing"Appeal" — Rehearing — Licences Reduction Board — Reduction of rent — Appeal to police magistrate by owners — Whether police magistrate has power to further reduce rent in absence of cross-appeal by tenant — Licensing Rents and Fees Adjustment Act 1915 (No. 2776), s. 4 — Licensing Act 1916 (No. 2855), s. 49, Second Schedule — Licensing Act 1919 (No. 3028), s. 13.